In re Civil Commitment of D.E.C.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 500-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2009

Before Judges Carchman and Lihotz.

D.E.C. appeals from a November 7, 2008 judgment requiring his involuntary civil commitment in the Special Treatment Unit (STU) in Kearny, a "secure facility designated for the custody, care and treatment of sexually violent predators," N.J.S.A. 30:4-27.28g, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. D.E.C. challenges the judgment of civil commitment and determination that he is a sexually violent predator, arguing:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT D.E.C. IS A SEXUALLY VIOLENT PREDATOR AND AT PRESENT THE RISK OF RECIDIVISM IS AT A SUFFICIENTLY HIGH LEVEL TO JUSTIFY COMMITMENT.

POINT II

D.E.C. AND OTHERS SIMILARLY SITUATED SHOULD BE ALLOWED TO ENTER A PROGRAM INVOLVING NOT ONLY THERAPY BUT WHICH WOULD ALSO INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY.

Following our review, we reject D.E.C.'s arguments and affirm substantially for the reasons set forth by Judge Perretti in her comprehensive oral opinion of November 7, 2008. R. 2:11-3(e)(1)(A). We add these comments.

Under the SVPA, courts are authorized to order the involuntary civil commitment of an individual when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator[.]" N.J.S.A. 30:4-27.32a. An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "has been convicted... of a sexually violent offense... and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. The Court has explained the standard for involuntary commitment under the SVPA, as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts.... [T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.

Those findings... require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

With these standards in mind, we review D.E.C.'s criminal history, and the expert testimony presented by the State at the commitment hearing.

D.E.C. pled guilty to sexually abusing his nine-year-old nephew and was ordered to serve his sentence at the Adult Diagnostic and Treatment Center [ADTC] at Avenel. This was D.E.C.'s second conviction for sexually abusing a child.

The first offense occurred on October 6, 1995. J.C., then age six, informed police that he performed fellatio on D.E.C., and D.E.C. had performed fellatio on him and penetrated him anally. D.E.C. pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), which was treated as a second-degree offense for sentencing purposes, and sentenced to seven years incarceration and Community Supervision for Life (CSL).

D.E.C. was evaluated by an ADTC psychologist to determine whether his conduct was "characterized by a pattern of repetitive, compulsive behavior" and to assess his "amenability to sex offender treatment," pursuant to the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1, -2. The evaluator determined D.E.C.'s behavior was "repetitive," but not "compulsive"; therefore, treatment at ADTC was deemed inappropriate. D.E.C. served his state prison sentence and was paroled on October 25, 2000.

D.E.C. moved into his grandmother's home in Middletown, Monmouth County. Several of his relatives, including a minor-aged "niece and nephews" lived in the home. Among the children was D.H. D.H. reported beginning in November 2000, D.E.C. touched him several times with "his clothes on and off," and performed fellatio on him on three separate occasions. The assaults continued for three weeks, when D.E.C. left the house.

D.E.C. was arrested and pled guilty to one count of aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and one count of violation of CSL, N.J.S.A. 2C:43-6.4. Prior to sentencing, D.E.C. was again evaluated at the ADTC. The evaluator concluded D.E.C. was "an intellectually and educationally limited individual" who "admitted to sexually abusing his nephew" and evidenced "repetitive and compulsive sexual behaviors for statutory purposes." D.E.C. assented to treatment at the ADTC, as long as his father, also a convicted sex offender, was no longer serving his sentence there. The court sentenced D.E.C. to ten-years imprisonment, with a five-year period of parole ineligibility, to be served at the ADTC.

In 2004, D.E.C. was diagnosed with Post-Traumatic Stress Disorder resulting from sexual assaults inflicted by his uncle when D.E.C. was a young child. He was prescribed medication, which treated his symptoms. Unfortunately, his sex offender treatment was not as successful. Reports from ADTC staff members stated D.E.C. made little progress in therapy over his six years at Avenel. A February 4, 2008 evaluation noted D.E.C. posed an unusual case:

Although the actuarials do not suggest D.E.C. is at high risk for sexual reoffense, his ability to safely return to the community is questionable.... He has made minimal therapeutic progress, continues to struggle with taking responsibility for current behaviors... and continues to manipulate others. What is troubling also is the impulsive nature of his offense, the little time that had passed between his first incarceration and the instant offense.... Clinical impression suggests he has not yet developed sufficient coping mechanisms or relapse prevention strategies to manage his impulsivity and deviant arousal.

As a result, the State commenced additional evaluations to determine whether to seek D.E.C.'s civil commitment as a SVP. D.E.C. refused to participate in an evaluation by Dr. Nancy W. Graffin. Thereafter, he was evaluated by Dr. Evan Feibusch and Dr. Marina Moshkovich, both of whom diagnosed him as suffering from pedophilia, borderline intellectual functioning, and personality disorder, not otherwise specified (N.O.S.). In response to these reports, the State filed a petition for civil commitment. An order granted the temporary commitment of D.E.C. on August 1, 2008.

On October 31, 2008, D.E.C. was evaluated by Pogos Voskanian, M.D., a psychiatrist, and Brian Friedman, Ph.D., a psychologist, whose expert diagnoses mirrored the conclusions of previous evaluations performed at the ADTC: D.E.C. suffered from pedophilia, personality disorder, N.O.S., borderline intellectual functioning, and several learning disorders. Both experts appeared at the hearing on behalf of the State.

Dr. Voskanian reviewed reports of D.E.C.'s criminal history, past treatment, and evaluations. He interviewed D.E.C. on two occasions. Dr. Voskanian determined that while discussing the predicate offense, D.E.C. was "stimulated," evincing a persistent deviant sexual arousal. He also noted that pedophilia, personality disorder, N.O.S., along with antisocial and borderline personality traits, do not remit and must be controlled through therapy. Further, D.E.C. had serious difficulty controlling his deviant sexual urges, and a poor understanding of motivation for sexually offending. Dr. Voskanian testified:

In [D.E.C.'s] scenario, I did not see regret, remorse, victim empathy. In addition... he described qualities of deriving pleasure from [the] pain of the victim. These are significant factors in combination that markedly increase his risk for sexual re-offense and do... correspond to history of re-offending immediately after he's released from prison.

Dr. Voskanian concluded D.E.C. was highly likely to reoffend if not civilly committed.

Dr. Friedman discussed D.E.C.'s turbulent social history, which included exposure to foster care, his learning disabilities and problems in school, sexual abuse by his uncle, and non-sexual criminal offenses. Dr. Friedman also conducted several standardized actuarial assessments; however, in many tests, D.E.C.'s scores were considered "invalid" or "uninterpretable," due to the inconsistency of his response.

D.E.C.'s treatment progress was very limited, due both to his low level of cognitive functioning and poor insight regarding "sexually reoffending dynamics and sexual deviance." D.E.C. "exclusively attributed" his sexual assaults of the young boys to "being frustrated [or] being angry." Dr. Friedman stated:

[D.E.C.] has a rule against hitting children, but he doesn't have a rule about - and this is what we talked about and I asked him directly - about putting his penis into children's mouths. So it's this - it's just this lack of understanding that a big part of what drives his offending is the fact that he is sexually attracted to children. And he just does not recognize that, does not accept that he has this general arousal pattern... and really doesn't have insight as of yet as to why he sexually offended.

....

In my opinion, D.E.C. presents as a high risk for sexual re-offense at this time. He crosses the threshold for being... highly likely to commit future sexual offenses if he does not receive additional treatment at this time.

On cross-examination, both experts acknowledged that: D.E.C. never showed a proclivity for violence or used a weapon in the commission of his offenses; while at the ADTC, he committed no serious institutional infractions, avoided pornography, and made no attempt to reach out to children; and never refused treatment. Based on D.E.C.'s behavior at the ADTC, the defense argued there were no longer "indications of significant anti-social behavior." Conceding D.E.C. had committed two sexually-violent offenses and was diagnosed with pedophilia, defendant maintained his condition does not preclude him "from controlling his sexually-violent behavior."

After a thorough review of the evidence presented, both documentary and testimonial, Judge Perretti credited the experts' testimony and entered these findings and conclusions:

[D.E.C.] suffers from abnormal mental conditions and personality disorder that predispose him to commit sexually-violent acts. The diagnosed conditions have not been contradicted. [He] has acted upon his pedophilic urges in a highly-compulsive fashion. [D.E.C.'s] cognitive, emotional and volitional faculties have been influenced by the diagnosed conditions.... The evidence has been clear and convincing that the respondent's predisposition makes him highly likely to commit additional sexually-violent acts against pre-pubescent children within the foreseeable future[.]

The judge rejected the suggestion that alternative monitoring methods would suffice, based upon the fact D.E.C. reoffended within a month of his initial release, despite the strictures of CSL, and the high risk of detection as D.H. was assaulted in his bedroom while his mother was home.

Additionally, the "cluster of dynamic variables of concern," which included "lifestyle instability," unemployment, "intimacy deficits," and "using sex as a mechanism to cope with negative affective states" persuaded the court that civil commitment and sex offender treatment were necessary to reduce D.E.C.'s high risk of reoffense.

This court's review of these findings is extremely narrow. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We accord a trial judge's determination "the utmost deference... as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). We modify an order "only where the record reveals a clear abuse of discretion." V.A., supra, 357 N.J. Super. at 63 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). This is not such a case.

On appeal, D.E.C. attacks the court's finding that his present mental state makes him highly likely to re-offend. He emphasizes, as significant, the fact that he never committed a non-sexual offense involving violence and used no weapons in the identified sexual assaults. D.E.C. accepts the diagnosis of pedophilia but maintains he is able to control this behavior, noting he committed no infractions at the ADTC and engaged in no anti-social or inappropriate sexual behavior. He self-reported that he does not fantasize about children when masturbating and consistently attended his treatment.

Following our review, we reject D.E.C.'s contentions. His sexual assaults, including anally penetrating children, are violent offenses. They occurred over long periods of time and were undertaken with disregard for the high degree of possible detection. D.E.C. has no remorse for his conduct and displays no empathy for his victims. His comments to the evaluators strongly suggest he views these behaviors as acceptable. He reoffended within weeks of release from prison. Further, the experts confirm D.E.C.'s treatment to date has been limited and was insufficient to educate him on how to avoid pedophilic sexual urges in an effort to mitigate the future risk of reoffense.

D.E.C. also asserts the court erred in failing to evaluate available community treatment resources to allow his conditional discharge. D.E.C. contends his behavior at ADTC reflects a lessening degree of dangerousness and, now that he has had treatment, he must be afforded the chance to demonstrate he has progressed. We are not persuaded.

The statute provides for conditional discharge where a court finds the committee is "not [] likely to engage in acts of sexual violence because the person is amenable to and highly likely to comply with a plan to facilitate the person's adjustment and reintegration into the community[.]" N.J.S.A. 30:4-27.32c(1); In re Commitment of E.D., 353 N.J. Super. 450, 453 (App. Div. 2002)(holding the court may order conditional discharge as a matter of its inherent authority). Consideration of conditional discharge is appropriate "once a person no longer meets the SVPA 'sexually violent predator' criteria[.]" In re Commitment of JJF, 365 N.J. Super. 486, 497 (App. Div.) (referencing holding of E.D., supra, 353 N.J. Super. at 453) (emphasis removed), certif. denied, 179 N.J. 373 (2004).

D.E.C. has made little progress in confronting the issues, which lead him to sexually abuse children. Despite his treatment, he limits his acknowledged arousal to the "two little boys" for whose assaults he was convicted. His claims to Dr. Friedman that "he has not had a single sexual thought of a child in all of his years at ADTC" is contradicted by his other comments that he chose the victims because they "fit my profile," that is, "blonde hair, not blonde hair, dirty blonde hair, little bit brown, skinny."

We conclude the trial court's findings that the State has proven by clear and convincing evidence D.E.C. "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined[,]" N.J.S.A. 30:4-27.26, and "has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend[,]" W.Z., supra, 173 N.J. at 132, are firmly supported by substantial credible evidence. The conclusions predicated on those findings are consistent with controlling legal principles. The order of commitment will not be disturbed.

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